Abuse Conviction Against Low-IQ Teen Thrown Out

(CN) – An intellectually disabled Navajo teenager didn’t know what he was saying when he confessed to molesting a neighbor boy, the full 9th Circuit ruled Monday, ordering a new trial. The alleged victim was 8 in 2009 when he claimed that Tymond Preston, an 18-year-old high school dropout with an IQ of 65, had sexually assaulted him. The boy lived next door to Preston’s family on the Navajo Nation in Northeastern Arizona, and the families had been involved for years in a feud that included allegations of witchcraft. Among other seemingly fantastical details he gave to a forensic interviewer at a Flagstaff, Ariz., hospital, the child said Preston had chased him with a “monster truck,” with police and helicopters in pursuit, and that the child’s kittens interrupted the rape by scratching Preston. There was no physical evidence to back up the child’s abuse claims. FBI Special Agent James Kraus and Navajo Nation Criminal Investigator Greg Secater interviewed Preston in his parent’s front yard for about 40 minutes not long after the allegations were made. Preston informed the agents straight away that he was “not … all there,” and had “problems with my head, like a tumor.” He also didn’t know what they meant when they asked if he was “disabled.” By the end of the interview, however, police had secured a signed confession, even though both sides now agree that Preston was not at home on the day in question. Charged in federal court with aggravated sexual abuse of a minor, Preston argued that his confession had been involuntary, but U.S. District Judge G. Murray Snow in Phoenix denied his move to suppress. Preston then waived his right to a jury trial in exchange for a lesser charge and was sentenced to 50 months in prison and a lifetime of supervised release. Preston’s attorney, Keith Swisher, said Monday that his client was released after serving 4 years in prison and is back living on the Navajo reservation. Preston took his involuntary-confession argument to the 9th Circuit where a divided three-judge panel affirmed in 2013. The appeals court later agreed to rehear the case before an 11-judge, en banc panel, which reversed on Monday and granted Preston a new trial. The judges also used the case to change the way the circuit examines allegedly coerced confessions, finding that they must be evaluated on the “totality of the circumstances” instead of “without regard to the individual circumstances of the suspect,” as the three-judge panel in Preston’s case had done. “The psychological evidence regarding Preston’s intellectual disabilities confirms … that he is confused by complexity, abstraction, and multiplicity, and likely to acquiesce in suggestions made by the questioner,” Judge Marsha Berzon wrote for the panel. “As a result, recognizing that where one is asked ‘a or b,’ one can answer ‘neither one,’ rather than acquiescing in one or the other, could well have exceeded his intellectual abilities.” The agents allegedly confused Preston by explaining to him that there were two kinds of child molesters – monstrous predators and the merely curious – then repeatedly asking him which one best described him. They did not offer him the third choice of being innocent. They also told him they would keep coming back until he confessed, and “suggested falsely that if he confessed, his admissions would not be used against him – he could ‘move on’ after apologizing to the child, rather than being punished,” the ruling states. “Considered all together, the various factors here – Preston’s severe intellectual impairment; the police’s repetitive questioning and the threats that it would continue without end; the pressure placed on Preston to adopt certain responses; the use of alternative questions that assumed his culpability; the officers’ multiple deceptions about how the statement would be used; the suggestive questioning that provided details of the alleged crime; and the false promises of leniency and confidentiality – leave us convinced that Preston’s will was overborne and his statement involuntary,” Berzon wrote. “We must be mindful to protect the constitutional rights of all members of our society,” she added, “not just those of normal intelligence and cognitive functioning. Even if we would reach a different conclusion regarding someone of normal intelligence, we hold that the officers’ use of the methods employed here to confuse and compel a confession from the intellectually disabled eighteen-year-old before us produced an involuntary confession.” Judge Susan Graber disagreed on the last point somewhat in a concurrence to the majority ruling. “I think that the officers’ false promises about the nature of the interview, coupled with Preston’s intellectual disability, coerced Preston into confessing, but most of the tactics employed by the officers were not coercive,” Graber wrote. Though reluctant at this stage to discuss the case in detail, Swisher said in an interview that he and Preston were “very happy that the 9th Circuit reached the right result, threw out the conviction, and threw out the coerced and inaccurate so-called confession.”